GHANSHYAM DAS GUPTA Vs. STATE O

JUDGEMENT

(1.) THE applicant seeks bail in crime number 1583 A.K. of 2005 for offences under sections 147,148,149, 323, 504,506,436,302 and 201IPC and section 6 of Unlawful Activities (Prevention) Amendment Act, 2004, P.S. Kotwali, District Mau.

(2.) IN short the allegations of the prosecution are that there was a noting in district Mau on 14.10.2005 because of playing of loudspeaker and in the said rioting the factory of Khurshid situated at mohalla Mughalpura on TCI road was set a blaze by a rioting mob of 50-60 people from other community Abu Talib son of informant Hazi Salauddin, who had joined the said factory as worker just four days prior, had gone to work in that factory along with one Shamshad and when the factory was torched he came out with the said Sham-shad to save their lives. Shamshad was neither assaulted nor any gesture was made to assault him but the applicant and one Nand Lal Sahani assaulted Abu Talib with iron rod at the instigation of one Bharat Lal Rahi. Adu Talib sustained injuries and fell down. Shamshacl came to the informant and narrated him the incident. Curfew was imposed due to riot. The informant came to know that on 26.10.2005 a dead body had been fished out of Tons river in Bahadur Ganj, District Ghazipur and when the informant went to police station Kasimabad then the police showed the cloths and the photo of the recovered body which was recognized by the informant to be that of his son Abu Talib. INformant then went to the police station Kasimabad in district Ghazipur and lodged the FIR on 7.11.2005, which was subsequently transferred to P.S. Kotwali, district Mau for investigation.

(3.) SRI Sengar vehemently harangued that in this case the applicant has been falsely implicated and the FIR is very belated and is a cooked up version which was lodged after a gap of more that 20 days from the recovery of the dead body of an unknown person from the river Tons on 16.10.2006. He further contended that the nobody else but for the deceased sustained injury in the rioting and there was no motive for the applicant to assault the deceased leaving all other persons of the locality and the factory including the owner Khurshid Alam and his wife Shaira Khatun and all other labours unhurt and without assault. He further contended that the wife of the owner Shaira Khatun was saved by a Hindu Bablu Misra who kept her in his house for two days. He further contended that there are two contradictory versions given by the prosecution witnesses regarding injuries sustained by the deceased. One version is given by the owner and his wife who have stated that the deceased jumped from the roof as a result of which he sustained the injuries which version is supported by many others and the second version is by Shamshad and Mazahar who have stated that the deceased was assaulted by the applicant and Nand Lal Sahani. To support his contention of contradictory versions of prosecution evidence, learned Counsel has invited my attention on the statements of Khurshid Alam and his wife Shaira Khatun appended along with this bail application. Learned Counsel further contended that in the FIR it is wrongly mentioned that other people were also assaulted and murdered by the rioting mob as there is no evidence to that effect nor the prosecution could get any other person examined medically in the incident. He further contended that even in the charge-sheet no other person who had sustained injuries has been made a witness as there was no other person who was injured in the said incident and therefore the prosecution allegation of assault by the mob on the persons of the other community is totally false. He further contended that the applicant was a member of Peace committee to restore harmony in the area vide. Annexure SA-3 but he has been falsely implicated at the instance of the local MLA Mukhtar Ansari who was instrumental in fomenting the riot. He also submitted that it was because of this reason and patronage of the said MLA that the FIR was lodged in district Ghazipur instead of district Mau where the incident had occurred. He further contended that on the own showing of the informant he came out of his house to file various applications of 28.10.2005 and 2.11.2005 but he did not lodge any FIR on those dates but lodged it after a great delay on 7.11.2005 for which there is no reasonable explanation. He further contended that the applicant does not have any criminal history nor he is wanted in any other case and he never absconded nor tampered with the evidence. He further submitted that the corpse which is alleged to be that of the deceased is intact not of the deceased. He further contended that the first informant is not an eye-witness of the incident and presence of Shamshad and Mazahar on the spot is doubtful as they did not sustain any injury ever though it is alleged that Shamshad came out in the company of the deceased from the factory and was faced with the rioting mob and the applicant and other mob frenzy people first. It is also submitted that no weapon of assault has been recovered from the possession of the applicant and he has been falsely implicated because he is the secretary of Ram Lila committee and in that capacity he had moved various applications to remove the illegal encroachments over Ram Lila platform done by people of other community vide Annexure SA-4. He further contended that the applicant will not abscond nor tamper with prosecution witnesses and therefore he should be released on bail as he is already in jail since July, 2007.